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    • dx100uk   You are absolutely correct. That's exactly what the wording is! And if that's the case then - happy days for me! However, I thought that:   1. This wording meant the conveyancing solicitor had to tell the council that the house was about to be sold so they were aware!   But you are saying that the council only needs to be informed AFTER the house has been sold? Can I tell the council that? [I think I've seen something on the internet that says I can, rather than the CS] Or do I need the conveyancing solicitor to contact the council?   2. That this wording wasn't a restriction K [as I'd looked at Schedule 4 of the Standard Forms of Restriction] and tried to match my wording to those listed - and thought restriction K was the closest.   3. That this was a non-standard restriction [and that's what the Land Registry told me too and that the restriction was not a Restriction K!!! [see extract below]   Please remember that when applying for a restriction not in standard form: it must always contain the words ‘is to be completed by  registration’ rather than ‘is to be registered’. This will serve to make the effect of the restriction clear. The term ‘registered’, where used in any of the standard form restrictions, means the completion of a registrable disposition by complying with the relevant registration requirements prescribed in Schedule 2 to the Land Registration Act 2002 (rule 91(3) of the Land Registration Rules 2003), but this statutory definition only applies to standard form restrictions. Please note that we will not accept restrictions not in standard form for registration that contain the words ‘is to be registered’ So I'm confused now. IF it is a restriction K - then the conveyancing solicitor doesn't have to do anything and I can let the council know. It seems it is dependent on the wording 'completed by registration' and 'is to be registered'??? Below is copied from Martin's MSE.  This relies again on the 'is to be registered' whereas my wording is ' completed by registration' which you say is restriction K and LR says is not.   I need to go to sleep now!   Thanks dx.   Extract from MSE below.   If your property is jointly owned a creditor will not be able to obtain a CO against you, they can only get what is called a restriction. The laws on Restrictions are totally different to Orders, the most important being there is NO OBLIGATION for you to pay any of the proceeds of the sale to the creditor. However, during the whole court process you go through the reference from all parties (especially the creditor) will be to charging order and NOT to restriction. This is done in order to decieve you believing you are stuck with a CO. However, not all solicitors are aware of the law in this regard and it is important that you raise this point with them in the first instance before proceeding with them Quote: Restriction The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :- No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of /I]an interim[I/I]a final[I charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).        
    • Hi Tony,   Please ensure YF does NOT acknowledge any debt  when confirming their new address.   They should simply state, " Please note my new address, as shown above."   Do not say anything about "a debt owed", or "the money you are chasing."   Do nothing that resets the SB Clock - ie acknowledging the debt and causing probs for the next 6 years. 
    • you ring you bank    
    • i suspect the charge on the Land registry site against the house reads:   2. (XX.XX.2007) RESTRICTION: No disposition of the registered estate is to be completed by registration without a certificate signed by the applicant or his conveyancer that written notice of the disposition was given to XX Council at P.O. Box XX, STREET, TOWN, POSTCODE, being the person with the benefit of a Charge under Section 22 of the Health and Social Services and Social Security Adjudications Act 1983.   ..............   that is a restriction k and is useless to the council, as all 'legally' your have to do is inform them AFTER the house has been sold . then it's too late money has gone.   dx
    • I have got a copy of the charge. The Land Registry responded to say that the document attached to the RX1 was as follows. The A4 document headed 'Health and Social Services and Social Security Adjudications Act 1983 and National Health Service and Community Care Act 1990' is a statutory charge. However as the person concerned (your late father) was one of joint proprietors of the property, the charge could not be registered or noted. Instead it was protected by registration of a restriction.   This is a statutory charge that has arisen under section 22 of the Health and Social Services and Social Security Adjudications Act 1983.   Unfortunately the Land Registry blog was discontinued on 30 June 2020 [I only found out today!] they're waiting for a new platform which could take a few weeks - so I haven't been able to obtain any other advice, other than what I found in the Hardwick and co website today which stated that S22 of HASSA had been repealed and stated that    After 1 April 2015 a Local Authority will only be able to recover unpaid care home fees by securing a judgment debt either in the County Court or the High Court (s69(1) of the Act). and The Act increases the time limit for the recovery of a debt comprising of unpaid care home fees from three years to six years from the date the sum becomes due   hence I thought that as the fees had not been paid and more than 3 years had elapsed that perhaps the charge was no longer extant?    If the restriction is such that the CS only has to notify the council [and there's no restriction on me selling] then I thought the sale could proceed while I continue to battle it out with the council. Who haven't been in touch now since 2016.   This is all very complicated - I'm sure it could be simplified!!   Thank you      
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Well known case which argues the cause of action and limitations...this was an HP agreement that the cause of action to recover the unpaid balance did not start until the lender had served a termination letter or accepted the debtor’s repudiation of the agreement.


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Well known case which argues the cause of action and limitations...this was an HP agreement that the cause of action to recover the unpaid balance did not start until the lender had served a termination letter or accepted the debtor’s repudiation of the agreement.

 

Thankyou, would you know if a default notice was issued and the terms not carried out would this mean the agreement was terminated?

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Varies from default notice to default notice...creditor to creditor...some state that at the end of the prescribed 14 days allowance to rectify any breach...some do not mention termination at all.

Termination can be when the debt is assigned or when its litigated on......there is no definitive guideline..every debt and default and termination is different.

 

But termination is irrelevant with regards to limitations...cause of action/last payment/acknowledgement..is the key.


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Varies from default notice to default notice...creditor to creditor...some state that at the end of the prescribed 14 days allowance to rectify any breach...some do not mention termination at all.

Termination can be when the debt is assigned or when its litigated on......there is no definitive guideline..every debt and default and termination is different.

 

But termination is irrelevant with regards to limitations...cause of action/last payment/acknowledgement..is the key.

 

Thanks Andy, I agree, I also thought cause of action/last payment/acknowledgement meant the debt was SB (that would be in 2007) but from today's hearing the Judge's interpretation was that if the agreement wasn't terminated before the balloon payment became due then the whole debt was not SB.

But at the first hearing last July that Judge said the first part of the debt WAS SB, I'm sure he even said there is no question about that, but the final payment might not be as that was due in 2010.

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Thanks Andy, I agree, I also thought cause of action/last payment/acknowledgement meant the debt was SB (that would be in 2007) but from today's hearing the Judge's interpretation was that if the agreement wasn't terminated before the balloon payment became due then the whole debt was not SB.

But at the first hearing last July that Judge said the first part of the debt WAS SB, I'm sure he even said there is no question about that, but the final payment might not be as that was due in 2010.

 

Sounds plausible...but how can you have an agreement that's part terminated/statute barred and part that's not ? unless the balloon is a separate entity/agreement altogether....(which I would find very hard to accept)


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Sounds plausible...but how can you have an agreement that's part terminated/statute barred and part that's not ? unless the balloon is a separate entity/agreement altogether....(which I would find very hard to accept)

 

I totally agree,

I thought it odd and said to the Judge, I thought the 'agreement' covered all payments (monthly installments and the final payment)

 

 

so this would mean that the whole debt was SB as the last payment/acknowledgement was made in 2007?

but he said it did not and that the final payment was a separate 'debt' to the installments.

 

Just to add my agreement does say

1 payment of x followed by 47 payments of x

then 1 final payment of x.

So to me that would be the same agreement.

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Precisely


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I think you need to read the finance contract carefully. The balloon payment could be separate, as after paying monthly for a relevant period, there could have been an option to hand back the car or make the balloon payment.

 

You really need all of the paperwork to see what went on. The finance company should have written to you ahead of the balloon payment to ask what you wanted to do.


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